B-118850, AUG. 28, 1956

B-118850: Aug 28, 1956

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DURING WHICH YOU WERE IN A LEAVE WITHOUT PAY STATUS PENDING ACTION ON YOUR DISABILITY RETIREMENT APPLICATION. REPORTED THAT YOU WERE PHYSICALLY UNFIT TO PERFORM YOUR DUTIES. ON THE BASIS OF SUCH INFORMATION YOU WERE PLACED ON SICK AND ANNUAL LEAVE UNTIL SAME WAS EXHAUSTED. THEREAFTER YOU WERE CARRIED IN A LEAVE WITHOUT PAY STATUS UNTIL THE DATE OF YOUR RETURN TO DUTY. NUMEROUS SUBSEQUENT ATTEMPTS WERE MADE TO HAVE YOU UNDERGO THE NECESSARY EXAMINATION IN CONNECTION WITH THE RETIREMENT APPLICATION. THE AGENCY MAY MAKE SUCH AN APPLICATION ON HIS BEHALF AS PROVIDED ON PAGE R5-48.) "/B) IF SUCH AN APPLICATION IS FILED. DO NOT TAKE ADMINISTRATIVE ACTION TO SEPARATE HIM FROM THE SERVICE SOLELY BECAUSE OF DISABILITY UNTIL THE CIVIL SERVICE COMMISSION HAS DETERMINED WHETHER THE EMPLOYEE IS ENTITLED TO DISABILITY RETIREMENT ON THE BASIS OF SUCH APPLICATION. "/C) IF NECESSARY.

B-118850, AUG. 28, 1956

TO MR. DARRYL COTTRELL BISHOP:

WE REFER TO YOUR LETTER REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF FEBRUARY 26, 1954, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR THE PERIOD APRIL 5, 1951, THROUGH MARCH 16, 1953, DURING WHICH YOU WERE IN A LEAVE WITHOUT PAY STATUS PENDING ACTION ON YOUR DISABILITY RETIREMENT APPLICATION, AS AN EMPLOYEE OF THE POST OFFICE DEPARTMENT, HOUSTON, TEXAS.

THE RECORDS SHOW THAT AT THE REQUEST OF YOUR SUPERVISOR THE POST OFFICE PHYSICIAN AT HOUSTON GAVE YOU A MEDICAL EXAMINATION ON MARCH 16, 1951, AND REPORTED THAT YOU WERE PHYSICALLY UNFIT TO PERFORM YOUR DUTIES. ON THE BASIS OF SUCH INFORMATION YOU WERE PLACED ON SICK AND ANNUAL LEAVE UNTIL SAME WAS EXHAUSTED, AND THEREAFTER YOU WERE CARRIED IN A LEAVE WITHOUT PAY STATUS UNTIL THE DATE OF YOUR RETURN TO DUTY. ON MAY 18, 1951, THE POST OFFICE DEPARTMENT FILED AN APPLICATION WITH THE CIVIL SERVICE COMMISSION FOR DISABILITY RETIREMENT IN YOUR BEHALF, AND ON JULY 16, 1951, THE COMMISSION INFORMED THE POST OFFICE DEPARTMENT THAT YOU HAD REFUSED TO COMPLY WITH ITS REQUEST THAT YOU APPEAR FOR EXAMINATION. NUMEROUS SUBSEQUENT ATTEMPTS WERE MADE TO HAVE YOU UNDERGO THE NECESSARY EXAMINATION IN CONNECTION WITH THE RETIREMENT APPLICATION, BUT IT APPEARS THAT YOU DID NOT SUBMIT TO EXAMINATION UNTIL SOME TIME LATE IN 1952 OR EARLY IN 1953.

CHAPTER R5-47 OF THE FEDERAL PERSONNEL MANUAL, CONTAINING THE CIVIL SERVICE REGULATIONS RESPECTING RETIREMENT MATTERS, AUTHORIZES ADMINISTRATIVE AGENCIES TO INITIATE REQUESTS FOR DISABILITY RETIREMENT OF EMPLOYEES UPON THEIR REFUSAL TO DO SO. ALSO CHAPTER S1-8 OF THE MANUAL PROVIDES IN PERTINENT PART:

"/A) BEFORE TAKING ADMINISTRATIVE ACTION TO SEPARATE THE EMPLOYEE FOR DISABILITY, GIVE HIM AN OPPORTUNITY TO FILE AN APPLICATION FOR DISABILITY RETIREMENT. (IF HE REFUSES TO DO SO, THE AGENCY MAY MAKE SUCH AN APPLICATION ON HIS BEHALF AS PROVIDED ON PAGE R5-48.)

"/B) IF SUCH AN APPLICATION IS FILED, DO NOT TAKE ADMINISTRATIVE ACTION TO SEPARATE HIM FROM THE SERVICE SOLELY BECAUSE OF DISABILITY UNTIL THE CIVIL SERVICE COMMISSION HAS DETERMINED WHETHER THE EMPLOYEE IS ENTITLED TO DISABILITY RETIREMENT ON THE BASIS OF SUCH APPLICATION.

"/C) IF NECESSARY, HE MAY BE GRANTED LEAVE WITHOUT PAY PENDING ACTION ON THE CLAIM FOR DISABILITY RETIREMENT.'

THE QUOTED REGULATIONS PERMIT THE FILING OF THE DISABILITY RETIREMENT APPLICATION BY THE EMPLOYEE, OR IF HE FAILS OR REFUSES TO DO SO, SUCH APPLICATION MAY BE FILED ON HIS BEHALF BY THE AGENCY.

IN 30 COMP. GEN. 342, FEBRUARY 6, 1951, IT WAS RULED BY OUR OFFICE, QUOTING FROM THE SYLLABUS---

"THE TERM "SUSPENSION FROM THE SERVICE" AS USED IN THE BACK-PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, PRIMARILY IS CONCERNED WITH CHARGES ARISING OUT OF AN EMPLOYEE'S CONDUCT, AND THEREFORE THE INVOLUNTARY PLACING OF AN EMPLOYEE ON LEAVE WITHOUT PAY PENDING ACTION ON A DISABILITY RETIREMENT APPLICATION ADMINISTRATIVELY FILED FOR THE EMPLOYEE, PURSUANT TO THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT, WAS NOT A "SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THE ACT SO AS TO ENTITLE THE EMPLOYEE UPON RESTORATION TO DUTY TO COMPENSATION FOR THE PERIOD HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS.'

ACCORDINGLY, YOU WOULD NOT BE ENTITLED TO THE COMPENSATION HEREIN CLAIMED, AND THE CONCLUSION REACHED IN OUR SETTLEMENT OF FEBRUARY 26, 1954, IS CORRECT.

REGARDING YOUR REQUEST THAT THE CORRESPONDENCE FORWARDED TO OUR OFFICE IN SUPPORT OF YOUR CLAIM BE RETURNED, YOU ARE ADVISED THAT ORIGINAL DOCUMENTS SUBMITTED IN SUPPORT OF A CLAIM BECOME A PART OF THE PERMANENT FILES OF OUR OFFICE AND CANNOT BE RETURNED.